COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Bray 

Argued at Norfolk, Virginia 

BRIAN KEITH COOPER 

 MEMORANDUM OPINION* BY 

v. Record No. 1282-97-1 JUDGE JOSEPH E. BAKER 

 APRIL 7, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert P. Frank, Judge 

 James S. Ellenson for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Brian Keith Cooper (appellant) appeals from judgments of the 

Circuit Court of the City of Newport News (trial court) that 

approved jury verdicts convicting him of raping, robbing, and 

abducting a female (victim) with intent to defile. He contends 

the trial court erroneously permitted the Commonwealth to 

introduce his prior misdemeanor conviction for sexual assault. 

For the reasons that follow, we affirm appellant's convictions. 

 Upon familiar principles we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

Viewed accordingly, the record discloses that on February 1, 

1997, victim was grocery shopping at Food Lion at about 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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8:00 p.m. When she walked from the store to her truck, a man she 

later identified as appellant forced her into the truck at 

knifepoint and drove her to the back of the store, where he raped 

and robbed her. She immediately reported the incident to the 

police; however, her assailant had departed. Two months later, 

she saw appellant walking down the street. She reported to the 

police where she had seen appellant, and the police apprehended 

him. 

 Detective Price interviewed appellant on April 10, 1996. 

When Price told appellant he was investigating a rape complaint, 

appellant "told [Price] he didn't do anything like that because 

he was a family man." Price testified to that effect, without 

objection, during the Commonwealth's case-in-chief. 

 Appellant testified at trial and admitted to having sexual 

intercourse with the victim, but he contended it was consensual. 

 He denied having any prior felony convictions but admitted he 

had "been convicted of one petit larceny shoplifting charge." On 

cross-examination, appellant admitted telling Price that he would 

not commit rape because he was a family man, and appellant's 

counsel registered no contemporaneous objection to that line of 

questioning. The following exchange then took place: 

 Q What does you saying you're a family man 

have to do with an investigation of rape and 

abduction? 

 A Because rape is something violent and, 

you know, I don't understand any man that has 

to do something like that with a woman. 

* * * * * * * 
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 Q You're saying you've never done anything 

like that? 

 A Never done nothing like that. 

With the jury absent, the prosecutor proffered a copy of 

appellant's 1990 New Jersey conviction of criminal sexual contact 

for "intentinally [sic] touching the . . . [female victim's] 

buttocks . . . with the intent to humiliate the victim by 

coercion (deception)." Defense counsel objected because the 

prior crime was not a rape. In "an overabundance of caution," 

the trial court refused to admit the conviction but agreed to 

allow the prosecutor to continue that line of questioning to 

attempt to lay a proper foundation. 

 In the presence of the jury, the cross-examination of 

appellant continued: 

 Q Are you saying that you have never and 

would never commit rape, meaning actual 

penetration of a woman against her will, 

without her consent, is that correct? 

 A Exactly. 

 Q All right. Well, how about fondling a 

woman without her consent, would you ever do 

that? Have you ever done that? 

 A I would never disrespect a woman like 

that. 

Appellant's counsel objected, saying that was "a wrong question." 

The trial court overruled the objection. When the prosecutor 

showed appellant his 1990 New Jersey conviction, appellant's 

counsel objected "to this whole line [of questioning]," saying, 
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"The door has not been opened this wide and what [the prosecutor 

is] doing is completely against the rules." The trial court 

overruled the objection. Appellant then again denied 

voluntarily, "inappropriately, wrongfully fondling a woman," and 

the trial court permitted the Commonwealth to offer the prior 

conviction into evidence. 

 On re-direct examination, appellant's counsel read aloud the 

1990 New Jersey conviction. Following that, appellant testified 

extensively concerning its contents. He testified that he had 

pled guilty to the offense, had forgotten some of the details 

surrounding the conviction until the rape charge here had been 

made, and guessed he had not had a lawyer represent him in New 

Jersey. He described the place the sexual contact had been made, 

detailed the time and crowd of people present, denied he had 

touched the female's buttocks, explained how the incident 

happened, claimed it was an accident, and said the victim had 

rejected his attempt to apologize by calling him a "black 

B-I-T-C-H." 

 At the conclusion of re-direct, the trial court, sua sponte, 

gave the following limiting instruction: 

 All right. Ladies and gentlemen, we've 

spent some time on this conviction. I want 

you to understand that this conviction, in no 

way, means that this defendant has an 

inclination to commit this kind of offense 

that we're dealing with today. It doesn't 

mean that he has a general disposition to do 

it, so it's not relevant as to whether he's 

guilty or not. Please understand that. 

 It's simply introduced to rebut or 

impeach part of his testimony and you should 
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only deal with it in that way and no further. 

The court asked the jury if they understood, and they responded, 

"Yes." 

 The sole issue presented by this appeal is whether, on this 

record, the judgments must be reversed because the trial court 

permitted the Commonwealth to introduce a copy of a record of 

appellant's prior conviction in the State of New Jersey for "an 

act of criminal sexual conduct" upon a female. Appellant 

concedes that when he testified, he was subject to being 

cross-examined; however, he asserts, he made no statements that 

permitted the Commonwealth to examine him on his prior record of 

wrongful sexual contact of a female. 

 The Commonwealth contends the New Jersey record was 

admissible for the purpose of impeachment. We agree. Once 

appellant made the statement to Detective Price that he was a 

"family man" and appellant chose to testify, he was subject to 

cross-examination on the statement and its meaning in the context 

of the crime charged for purposes of impeachment. When examined 

concerning the meaning of his "family man" statement, appellant 

responded that "rape" was "violent" and he could not understand 

how a man could do that to a woman. Upon further questioning, he 

said he also would never "disrespect a woman" by "fondling [her] 

without her consent." The trial court then properly permitted 

the Commonwealth to show the New Jersey conviction for 

impeachment purposes. 
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 Appellant counters that the prior conviction evidence was 

more prejudicial than probative and should not have been 

admitted. Determining whether the probative value of evidence 

outweighs the possible prejudice is the responsibility of the 

trial court and rests within its sound discretion. See Coe v. 

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Here, 

no abuse of discretion has been shown. 

 Appellant's obvious use of the words "family man" and denial 

of "disrespect" of a woman were calculated to mislead the jury 

and "opened the door" for cross-examination for the purpose of 

attacking his credibility. See Santmier v. Commonwealth, 217 Va. 

318, 319-20, 228 S.E.2d 681, 682 (1976). Moreover, the trial 

court carefully and accurately cautioned the jury how they were 

to treat the previous conviction evidence. Nothing in this 

record shows the jury disregarded the trial court's instruction, 

and we must presume the jury followed the instruction. See

Albert v. Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538 

(1986) (citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 

S.E.2d 644, 657 (1983)). 

 Finally, where an accused unsuccessfully objects to evidence 

which he considers improper and, on his own behalf, introduces 

further evidence of the same character, he thereby waives his 

objection. See Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 

875, 879 (1992). Here, appellant waived any objection he may 

have had by giving an extensive account of the facts surrounding 
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his prior conviction, attempting to show that, although he pled 

guilty, he actually was not. Therefore, even if we were to hold 

that the trial court erred in admitting the conviction, this rule 

of law also would bar our reversal. 

 For the reasons stated, the judgments of the trial court are 

affirmed. 

 Affirmed.